Issue:
Should a Judicial Official recuse him or herself or
disclose his or her relationship to a first year
associate in a large, multi-office Connecticut law
firm when other members of the firm appear before
the Judicial Official?

Additional
Facts: The Judicial
Official is not an appellate level judge and the
associate is a relative at the third degree of
kinship[1] but not a member of
the Judicial Official’s household. The
Judicial Official will not preside over any case in
which the relative files an appearance.

Response: Rule 1.2 states that a judge
“shall act at all times in a manner that promotes
public confidence in the … impartiality of the
judiciary, and shall avoid impropriety and the
appearance of impropriety. The test for
appearance of impropriety is whether the conduct
would create in reasonable minds a perception that
the judge violated this Code or engaged in other
conduct that reflects adversely on the judge’s
honesty, impartiality, temperament, or fitness to
serve as a judge.”

Rule 2.4 states,
in relevant part, that “(b) A judge shall not permit
family, social, political, financial, or other
interests or relationships to influence the judge’s
judicial conduct or judgment. (c) A judge
shall not convey or permit others to convey the
impression that any person or organization is in a
position to influence the judge’s judicial conduct
or judgment.”

Rule
2.11(a) states that a judge “shall disqualify
himself or herself in any proceeding in which the
judge’s impartiality might reasonably be questioned
….” Two of the specifically identified
circumstances requiring disqualification are when
the judge knows that the judge’s “spouse or domestic
partner, or a person within the third degree of
relationship to either of them, or the spouse or
domestic partner of such a person is … acting as a
lawyer in the proceeding … [or] a person who has
more than a de minimis interest that could be
substantially affected by the proceeding.”
Rule 2.11(a)(2)(B) and (C). An additional
circumstance requiring disqualification occurs when
the judge knows that the judge, “individually or as
a fiduciary, or the judge’s spouse, domestic
partner, parent, or child, or any other member of
the judge’s family residing in the judge’s
household, has an economic interest in the subject
matter in controversy or in a party to the
proceeding.” Rule 2.11(a)(3). Comment
(4) to Rule 2.11 states as follows: “The fact that a
lawyer in a proceeding is affiliated with a law firm
with which a relative of the judge is affiliated
does not itself disqualify the judge. If,
however, the judge’s impartiality might reasonably
be questioned under subsection (a) or the relative
is known by the judge to have an interest in the law
firm that could be substantially affected by the
proceeding under subsection (a)(2)(C), the judge’s
disqualification is required.”

Rule 2.11(c) states that a
judge subject to disqualification under this Rule,
except for bias or prejudice under subsection
(a)(1), “may ask the parties and their lawyers to
consider, outside the presence of the judge and
court personnel, whether to waive the
disqualification, provided that the judge shall
disclose on the record the basis of such
disqualification. If, following the
disclosure, the parties and lawyers agree, either in
writing or on the record before another judge, that
the judge should not be disqualified, the judge may
participate in the proceeding.”

In reaching
its conclusion, the Committee considered an article
in the Judicial Conduct Reporter, volume 33, No. 3
(Fall 2011) devoted to a discussion of
disqualification when a relative’s law firm appears
in a case before a judge, New York Joint Opinions
07-114 and 07-120, South Carolina Opinion 8-2012, as
well as this Committee’s decisions in
JE 2010-26,
JE 2011-06 and
JE 2012-03. In the New York opinions, that
Committee determined that a judge must recuse him or
herself when the judge’s first cousin (fourth degree
of kinship) appears as an attorney before the judge,
subject to remittal of the disqualification, but the
judge does not have to disclose or recuse him or
herself when other attorney’s in the cousin’s law
firm appears. By contrast, the New York
Committee stated that when the judge’s sibling
(second degree of kinship) or a member of the
sibling’s law firm appears before the judge, the
judge must recuse him or herself, subject to
remittal of the disqualification. The New York
opinion did not distinguish between a relative who
is an associate versus a relative who was a partner.
The South Carolina Committee concluded that while a
judge is disqualified from presiding over cases in
which a niece or nephew (third degree of kinship)
appeared as an attorney, the judge may be able to
preside over cases in which other members of the
relative’s law firm appear. The Committee
basically left it to the judge to decide whether his
or her impartiality might reasonably be questioned
when other members of the relative’s law firm
appeared and that in making that determination, the
judge should consider whether the judge’s ruling
would have a substantial effect on the relative’s
interest in the law firm. Like other
committees that have considered the question, the
South Carolina Committee noted that any
disqualification could be waived by the parties.

This Committee, in
JE 2010-26, determined that in accordance with
Canon 2’s proscription with respect to avoiding an
appearance of impropriety, a Judicial Official
should disclose the close, ongoing financial
relationship involving a subleasing arrangement and
occasional case referrals between the Judicial
Official’s sibling (second degree of kinship) and an
attorney whenever that attorney appears before the
Judicial Official. Similarly, in
JE 2011-06, the inquiring Judicial Official had
known the Attorney General for over 20 years and
they periodically socialized with each other.
The Judicial Official would recuse him or herself in
any case in which the Attorney General personally
appeared. The Judicial Official inquired about
a duty to disclose the personal relationship when
other members of the Attorney General’s Office
appeared. This Committee concluded that while
there was no duty to automatically disqualify him or
herself in all cases involving an appearance by the
Office of the Attorney General, the Judicial
Official had a duty to disclose the personal
relationship to the parties and their counsel.
Furthermore, if a motion to disqualify was filed,
the Judicial Official should exercise his or her
discretion in deciding the motion based upon the
information provided in the motion and accompanying
affidavit, as provided for in Practice Book § 1-23,
as well as the particular circumstances of the case.
In
JE 2012-03, this Committee determined that a
Judicial Official who was married to a governmental
lawyer was not disqualified from presiding over all
cases involving the governmental law office.
However, the Judicial Official should disclose the
marital relationship in any case in which an
attorney from the unit where the Judicial Official’s
spouse worked appeared before the Judicial Official
and the Judicial Official should inquire whether the
spouse had any involvement in the case. If the
spouse had any involvement, the Judicial Official
was to recuse him or herself or follow the procedure
set forth in Rule 2.11(c) to request the parties to
consider whether to waive the Judicial Official’s
disqualification. If the spouse had no
involvement in the case, the Judicial Official could
preside over the case unless a motion for
disqualification was filed and based upon the
information provided in connection with that motion
the Judicial Official determined that he or she
should recuse him or herself. It also was
suggested, but not required, that the Judicial
Official disclose the marital relationship in any
case in which an attorney from the spouse’s
governmental office appeared, even if the attorney
was from a different functional or geographical unit
of that office.

Based upon the facts
of this inquiry, including that the relative is at
the third degree of kinship, a first year associate
in a large, multi-office law firm, does not reside
in the Judicial Official’s household and the
Judicial Official is not a member of an appellate
level court, the Committee unanimously determined as
follows: The Judicial Official is not
disqualified from presiding over cases involving the
law firm subject to the following conditions:

The Judicial Official should disclose on the record
his or her relationship whenever the firm or any of
its members appear before the Judicial Official, and
inquire whether the relative was involved in any
manner with the acquisition or representation of the
client, or has more than a de minimis interest that
could be substantially affected by the proceeding.

If the relative was involved in the acquisition
or representation of the client, or has more than a
de minimis interest that could be substantially
affected by the proceeding, the Judicial Official
should recuse him or herself or follow the procedure
set forth in Rule 2.11(c) to request the parties to
consider whether to waive the Judicial Official’s
disqualification.

If the relative had
no involvement in the acquisition or representation
of the client, and does not have more than a de
minimis interest that could be substantially
affected by the proceeding, the Judicial Official
may preside over the case unless a motion for
disqualification is filed and based upon the
information provided in the motion and accompanying
affidavit, as provided for in Connecticut Practice
Book § 1-23, as well as the particular circumstances
of the case, the Judicial Official determines that
he or she should recuse him or herself.

[1] The third degree of
kinship includes great grandparents, great
grandchildren, aunts, uncles, nieces and nephews.
A full chart of the degrees of kinship is attached
as Appendix A.